On September 7, 2017, United States Secretary of Education Betsy DeVos spoke at George Mason University Antonin Scalia Law School to discuss problems with the current Title IX enforcement system and identified the need to establish a regulatory framework that better serves all students.
BACKDROP TO DEVOS’ REMARKS
Title IX of the Education Amendments Act of 1972 is a federal civil right law that requires educational institutions to maintain policies, practices, and programs that do not discriminate against anyone on the basis of gender. Title IX applies to all educational institutions, both public and private, that receive federal funds.
The Office for Civil Rights (OCR) at the United States Department of Education is charged with the responsibility to enforce Title IX and its implementing regulations. As part of its enforcement authority, OCR released a series of Dear Colleague Letters and other guidance, providing its expectations and requirements regarding legal compliance. Through this guidance OCR made clear that gender equity under Title IX includes the institutional obligation to prevent, investigate, and stop what it termed “sexual misconduct” that impacts the educational environment. (See, e.g., Office for Civil Rights, U.S. Dep’t. of Educ., “Dear Colleague Letter: Sexual Violence” (2011); Office for Civil Rights, U.S. Dep’t. of Educ., “Questions and Answers on Title IX and Sexual Violence” (2014).) OCR’s guidance has been criticized for lowering the standard of proof schools use in adjudicating complaints of sexual misconduct. Critics also faulted OCR’s guidance for seeming to require vague and overly broad sexual harassment policies, violating due process rights of students accused of sexual misconduct, and infringing upon free speech rights.
DEVOS ANNOUNCES INTENT TO AMEND TITLE IX REGULATIONS
In her remarks, Secretary DeVos echoed the concerns that have been raised regarding the OCR guidance. She also noted considerable confusion about the guidance since it was issued, and asserted the current federal approach has done a disservice to survivors of sexual violence, students accused of sexual misconduct, and school administrators. However, instead of rescinding OCR’S guidance documents (which would be within her authority to do), DeVos announced the Department of Education will launch a public comment period to inform the development of new federal regulations pertaining to campus sexual assault policies. This is significant because a federal regulation, as opposed to a Dear Colleague Letter, has greater force in establishing the obligations of educational institutions. Secretary DeVos solicited recommendations from “important perspectives” regarding Title IX enforcement issues including alternative models to traditional adjudication, the appropriate standard of proof for campus-based proceedings, investigation methods, and the role of campus officials.
WHAT THIS MEANS FOR COVERED EDUCATIONAL INSTITUTIONS
First, no immediate action is required. Until the Department of Education publishes new regulations or provides official guidance that supersedes existing guidance, educational institutions should continue to follow the guidance of the 2011 Dear Colleague Letter and 2014 Q & A document. However, they should do so with care to ensure that the due process rights of accused students are protected. Both courts and OCR itself have found some schools violated the accused’s due process rights in their attempts to comply with Title IX.
Second, consider utilizing the public comment period: By law, Federal agencies must consult the public during rulemaking. Anyone, including individuals or institutions, may submit a comment aimed at developing and improving federal regulations, and the Department of Education will review and consider all submissions. It is an opportunity to be heard and make a record of ideas or positions on the topic.
Read Secretary DeVos’s prepared remarks for examples of problems she cites with the current Title IX enforcement system. We will provide information on the notice-and-comment process as it becomes available and continue to send out similar alerts as new developments unfold.